Preview
FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 08/06/2021
EXHIBIT 1
FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021
NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED
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Lawrence Peikes (LP-2478)
lpeikes@wiggin.com
WIGGIN AND DANA LLP
437 Madison Avenue
35th Floor
New York, NY 10022
(212) 551-2600
Attorneys for Defendant
Walmart Inc. f/k/a Wal-Mart Stores, Inc.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TIA JUSTINO, :
:
Plaintiff : CASE NO. 1:21-cv-6673
:
v. :
:
WAL-MART STORES, INC., :
: NOTICE OF REMOVAL
Defendant. :
:
TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Defendant Walmart, Inc. f/k/a Wal-Mart Stores, Inc. (“defendant” or “Walmart”) hereby
notices the removal of this action to the United States District Court for the Southern District of
New York pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, based on diversity jurisdiction.
Removal is appropriate based on the following:
1. On or about January 13, 2021, plaintiff Tia Justino (“plaintiff”) filed a civil action
against defendant in the Supreme Court of the State of New York, County of Orange, designated
as Index No. EF000285-2021. A copy of the Summons and Complaint is attached hereto as
Exhibit A, pursuant to 28 U.S.C. § 1446(a).
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2. In her Complaint, plaintiff purports to allege claims under the New York State
Human Rights Law (“HRL”), N.Y. Exec. Law §§ 296, et seq., for sexual harassment (First Cause
of Action) and retaliation (Second Cause of Action).
3. Defendant first received notice of the civil action on or about February 12, 2021,
when process was served.
4. Pursuant to 28 U.S.C. § 1446(b), defendant timely filed a notice of removal,
attached hereto as Exhibit B (“first notice of removal”), on March 11, 2021, within thirty (30)
days after defendant was first notified of the lawsuit.
5. In its first notice of removal, defendant asserted that this action was properly
removable because the United States District Court had original diversity-based jurisdiction
pursuant to 28 U.S.C. § 1332(a)(1). More specifically, defendant maintained that the United
States District Court had diversity jurisdiction at the time of the Complaint’s initial filing
because complete diversity existed between the parties and, while the Complaint did not specify
the precise amount of damages claimed, the nature of plaintiff’s claims indicated she would be
entitled to recover in excess of $75,000 in damages were she to prevail on the merits of her
claims. Exhibit B, ¶¶ 10-11.
6. The Court (Halpern, J.) sua sponte remanded this action to the Supreme Court of
the State of New York, County of Orange for lack of subject matter jurisdiction. The remand
Order concluded that “Defendant failed to satisfy its burden of establishing that the amount in
controversy exceed[s] $75,000.” Remand Order, attached hereto as Exhibit C, at 4. However,
the Order further noted that “a notice of removal may be filed within 30 days after receipt by the
defendant, through service or otherwise, of a copy of an amended pleading, motion, order or
other paper from which it may first be ascertained that the case is one which is or has become
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removable.” Id., at 3 (quoting 28 U.S.C. § 1446(b)(3)). The Order went on to elaborate that,
“[i]f the case stated by the initial pleading is not removable solely because the amount in
controversy does not exceed the amount specified in section 1332(a), information relating to the
amount in controversy in the record of the State proceeding, or in responses to discovery, shall
be treated as an ‘other paper’ under subsection (b)(3).” Id. (quoting 28 U.S.C. § 1446(c)(3)(A))
(emphasis added). Finally, the Court noted that “the 30-day removal clock does not start to run
until the plaintiff serves the defendant with a paper that explicitly specifies the amount of
monetary damages sought” and, in this matter, “no paper ha[d] been served that would start the
30-day removal clock.” Id. at 4 (quoting Johnson v. Home Depot U.S.A., Inc., No. 19-CV_3476,
2019 WL 5287969, at *2 (E.D.N.Y. Oct. 18, 2019)) (emphasis added).
7. On March 22, 2021, defendant served its First Set of Interrogatories in the state
court proceeding requesting, inter alia, that plaintiff “[s]tate each type or element of damages
and relief (legal or equitable) for which plaintiff intends to seek recovery in this case.
Specifically: (a) describe the type or element of damages and relief; (b) as to each type or
element of damages and relief, state eth amount of damages plaintiff is claiming and describe in
detail plaintiff’s calculations in determining such amount; (c) as to each type or element of
damages and relief, identify all documents which refer or relate to the damages claimed, the
basis of plaintiff’s claim of such damages, or support the amount claimed, and plaintiff’s method
of calculation; and (d) identify any person plaintiff believes to have knowledge or information
concerning each type or element for which plaintiff intends to seek relief in this case, and state
separately with respect to each such person any and all facts, knowledge, and information
plaintiff believes such person possesses.” Defendant’s First Set of Interrogatories, No. 12,
attached hereto as Exhibit D.
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8. By way of her Amended Responses to Defendant’s First Set of Interrogatories,
dated July 9, 2021, plaintiff identified the following categories and corresponding monetary
amounts of damages: “a. The stress at the workplace took a toll on me mentally, and physically.
I was admitted to the hospital and had to take time off as I had issues with my bilinary glands,
pancreas, liver, and experienced heightened anxiety and depression. I have several hospital bills
due to the health conditions caused by my workplace. b. Seeking Damages worth $150,000 for
emotional distress as allowed under the applicable statute. c. Hospital bills, I am currently
unsure of the total....” Plaintiff’s Amended Responses to Defendant’s First Set of
Interrogatories, No. 12, attached hereto as Exhibit E.
9. Thus, according to plaintiff’s interrogatory responses, she is seeking monetary
damages for emotional distress totaling at least $150,000. Additionally, should she prevail,
plaintiff would be eligible to recover additional monetary damages for lost wages, as well as
interest, costs, and reasonable attorneys’ fees. As such, based on plaintiff’s discovery responses
it is now clear that the amount in controversy exceeds $75,000.
10. This action has become properly removable because the United States District
Court has original diversity-based jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) in that the
matter in controversy exceeds the sum of $75,000.00, exclusive of interests or costs, and is
between citizens of different states.
11. Plaintiff alleges that she resides in Newburgh, New York. (Exhibit A, ¶ 2). Upon
information and belief, plaintiff is domiciled in New York and is therefore a citizen of New York
for diversity purposes. 15 Moore’s Federal Practice, § 102.30, at p. 102-127 (Matthew Bender
3d Ed. 2015).
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12. Defendant Walmart Inc., formerly known as Wal-Mart Stores, Inc., is a Delaware
corporation with a principal place of business in Arkansas and is therefore a citizen of Delaware
and Arkansas for diversity purposes. 28 U.S.C. § 1332(c)(1). See also Washington Nat’l Ins.
Co. v. OBEX Grp. LLC, 958 F.3d 126, 133 (2d Cir. 2020) (“For purposes of the statute, a
corporation is a citizen of the state in which it has its principal place of business and every state
in which it has been incorporated.”).
13. Consequently, there exists complete diversity between plaintiff, a citizen of New
York, and defendant, a citizen of Delaware and Arkansas.
14. Furthermore, Plaintiff’s Amended Responses to Defendant’s First Set of
Interrogatories expressly quantify her claimed damages as at least $150,000, well in excess of the
$75,000 threshold for removal based on diversity jurisdiction. See 28 U.S.C. §§ 1332(a)(1),
1446(c)(2)(A)(ii).
15. The Supreme Court of the State of New York, County of Orange, is located
within the Southern District of New York. Therefore, venue is proper in this Court because it is
the “district and division embracing the place where such action is pending.” 28 U.S.C. §
1441(a).
16. This notice is timely filed within thirty (30) days of July 9, 2021, the date of
defendant’s receipt of “a copy of an amended pleading, motion, order or other paper from which
it [could] first be ascertained that the case is one which is or has become removable,” 28 U.S.C.
§ 1446(b)(3), namely, Plaintiff’s Amended Responses to Plaintiff’s First Set of Interrogatories.
17. Pursuant to 28 U.S.C. § 1446(d), copies of all process, pleadings, and orders
served upon defendant are attached hereto.
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18. Pursuant to 28 U.S.C. § 1446(d), copies of this Notice of Removal have been
served on all adverse parties and upon the Clerk of the State Court.
19. By removing this matter, defendant does not waive or intend to waive any
available defenses.
WHEREFORE, defendant respectfully requests that this Honorable Court take
jurisdiction of this action and issue all necessary orders and process to remove said action from
the Supreme Court of the State of New York, County of Orange, to the United States District
Court for the Southern District of New York.
Dated: August 6, 2021
New York, New York
Respectfully submitted,
DEFENDANT,
WALMART INC.
By: /s/ Lawrence Peikes
Lawrence Peikes (LP-2478)
lpeikes@wiggin.com
WIGGIN AND DANA LLP
437 Madison Avenue
35th Floor
New York, NY 10022
(212) 551-2600
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CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of August, 2021, the foregoing Notice of Removal
was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of
the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as
indicated on the Notice of Electronic Filing.
/s/ Lawrence Peikes
Lawrence Peikes (LP-2478)
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RECEIVED
EXHIBIT A
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
________ x Index No.
TIA JUSTINO,
Plaintiff, Plaintiff designates
ORANGE COUNTY
As the place of trial
v. SUMMONS
WAL-MART STORES, INC., The basis of venue is
Defendant's Business
Located at:
288 Larkin Drive
Monroe, NY 10950
Defendant.
x
To the above-named Defendant:
YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a
of your answer, or, if the complaint is not served with this summons, to serve a notice of
copy
appearance, on the plaintiffs attorney within 20 days after the service of this summons, exclusive
of the day of service (or within 30 days after the service is complete if this summons is not
personally delivered to you within the State of New York); and in case of your failure to appear or
answer, judgment will be taken against you by default for the inconvenience relief demanded in
the complaint.
Dated: Melville, New York
January 13, 2021
SLATER SLATER SCHULMAN LLP
445 Broadhollow Road, Suite 419
Melville, New York 11747
Attorneys for Plaintiff
Jol C. Luke, Jr., Esq.
Defendant's Address:
Wal-Mart Stores, Inc.
8th
702 SW Street
Bentonville, AR 72716
Filed in Orange County 01/13/2021 11:33:02 AM $0.00 1 of
Bk: 5143 7 Pg: 1150 Index: # EF000285-2021 Clerk: VS
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
x Index No.:
TIA JUSTINO,
Plaintiff,
COMPLAINT
-against- JURY TRIAL DEMANDED
WAL-MART STORES, INC.,
Defendant.
----------------------------------------------------------------x
Plaintiff, Tia Justino, (hereinafter "Plaintiff") by her counsel, SLATER SLATER
SCHULMAN LLP hereby sübiñits this Complaint and complains of the Defendant, upon
information and belief, as follows:
NATURE OF CASE
1. Plaintiff complains pursuant to the New York State Human Rights Law, New York State
Executive Law § 296, et seq. ("NYSHRL"), and seeks damages to redress the injuries
Plaintiff suffered as a result of being exposed to sexual discrimination, sexual harassment,
retaliation, and constructive dischargc/wrongful teñniñation.
PARTIES
2. Plaintiff is a single heterosexual female who resides in Newburgh, New York.
3. Defendant Wal-Mart Stores, Inc. (Hereinafter "Defendant") was and is still is a foreign
corporation duly organized and existing under and by virtue of the laws of the State ofNew
York.
4. Upon information and belief, Defendant solicits business within the State of New York.
5. Upon information and belief, Defendant derives substantial revenues from goods used or
consumed or services rendered in the State of New York.
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"employer"
6. Defendant is an within the meaning of the New York Human Rights Law and
at all relevant times, employed Plaintiff.
FACTS
7. Plaintiff commêñced her employment with Defendant on or around June 18, 2018 in
Monroe, New York within Orange County.
8. Plaintiff worked for Defendant as a CAP 2 Supervisor.
9. Plaintiff's duties included unloading trucks and supporting her manager.
10. After six (6) months Defendant promoted Plaintiff to Deli Manager.
11. Plaintiff's duties iñclüded taking care of floor freight and managing the freezer.
12. The sexual harassment started when Plaintiff's co-worker David commêñced his
employment with Defendant.
13. First, David stated to Plaintiff that his wife allowed him to have sexual relationships
with other women.
14. David consistently requested that Plaintiff send him naked photos.
15. David also consistently requested that Plaintiff bend over.
16. David told Plaintiff not to walk a certain way because when she did, he would want
"F*** Sh** her."
to the out of
17. On January 7, 2020, David sent Plaintiff a picture of his penis.
18. On January 13, 2020, Plaintiff complained to her Manager Renee.
19. The harassment did not end at this time.
20. On or around February 20, 2020, Plaintiff filed a complaint with the Equal
Employment Opportunity Commission ("EEOC") against Defendant.
21. Defendant's managers contimled to schedule Plaintiff and David with overlapping
shifts.
2
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22. David contiüüed leering and staring at Plaintiff in a sexually aggressive manner.
23. As a result, Plaintiff tried to limit her interactions with David by taking her lunch
break at the beginning of David's shifts.
24. David also used to come in on his days off and leer and stare at Plaintiff in a sexually
aggressive manner.
25. In addition to failing to remedy the situation, Defendant's mañagers retaliated
against Plaintiff by not providing her with the assistance she received prior to the
complaint.
26. Prior to the complaint, Defendant's managers scheduled associates to assist
Plaintiff during her shifts.
27. After Plaintiff's complaint, Defendant's managers stopped scheduling associates to
assist Plaintiff and told her that she should be doing everything by herself.
28. The decrease in her expected help further deteriorated Plaintiff's work enviroñüient
by effecting her ability to do her job.
29. Defendant's managers also retaliated against Plaintiff by investigating her for
baseless accusations made a gainst her after her complaint of sexual harassment.
30. Prior to her complaint of sexual harassment, Plaintiff's employment record was
devoid of any written discipline.
31. The unchecked continuing sexual harassment and retaliation forced Plaintiff to
withdraw from her employment.
32. Defendant constructively discharged Plaintiff on or about October 26, 2020.
Defendant'
33. As a result of s contiüüed harassaient of Plaintiff, she suffered numerous
injuries including economic and physical/emotional damages.
3
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34. Due to the harassment of Defendant, Plaintiff suffers from high stress and anxiety.
35. Plaintiff suffered emotional and other non-
pain, suffering, inconvenience,
pecuniary losses.
36. As Defendant's conduct has been malicious, willful, outrageous, and condüeted
with full knowledge of the law, Plaintiff demands punitive damages as against
Defendant.
37. The above are just some of the examples of unlawful conduct to which Defendant
subjected Plaintiff on an ongoing continuous basis.
38. Defendant intentionally discriminated against Plaintiff based on her gender/sex and
because of her lawful complaints of discriniination.
39. Defendant has a pattern and practice of discrimination and retaliation.
AS A FIRST CAUSE OF ACTION
FOR DISCRIMINATION UNDER NEW YORK STATE LAW
40. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of
this complaint.
41. Executive Law § 296 provides that "1. It shall be an unlawful discriminatory practice: "(a)
For an employer or licensing agency, because of the age, race, creed, color, national origin,
sex, or disability, or marital status of any individual, to refuse to hire or employ or to bar
or to discharge from employment such individual or to disciiniinate against such individual
employment."
in compensation or in terms, conditions or privileges of
42. Defendant engaged in an unlawful discriminatory practice by discriminating against the
Plaintiff through gender/sex discrimination, hostile work envirergilent based on sex, sexual
harassment, and constructive discharge/wrongful discharge.
4
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43. Plaintiff hereby makes a claim against Defendant under all of the applicable paragraphs of
Executive Law Section 296.
AS A SECOND CAUSE OF ACTION
FOR DISCRIMINATION UNDER NEW YORK STATE LAW
44. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of
this complaint.
45. New York State Executive Law §296(7) provides that it shall be an unlawful discriminatory
practice: "For any person engaged in any activity to which this section applies to retaliate
or discriminate against any person because [s]he has opposed any practices forbidden under
article."
this
46. Defendant engaged in an unlawful discriniinatory practice by wrongfully retaliating against
Plaintiff.
WHEREFORE, Plaintiff demands judgment against Defendant, in an am0üñt to be determined
attorneys'
at the time of trial plus interest, punitive damages, fees, costs, and disbursements of
action; and for such other relief as the Court deems just and proper.
Dated: Melville, New York
January 13, 2021
Respectfully submitted,
SLATER SLATER SCHULMAN LLP
John C. Luke, Jr., Esq.
Attorneys for Plaintiff
445 Broad Hollow Road, Suite 419
Melville, New York 11747
(631) 420-9300
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
x Index No.:
TIA JUSTINO,
Plaintiff
- against -
WAL-MART STORES, INC.,
Defendant.
........................................................ x
SUMMONS/COMPLAINT
Slater Slater Schulman LLP
Attorneys For Plaintiff
445 Broad Hollow Road, Suite 419
Melville, New York 11747
(631) 420-9300
CERTIFICATION
Pursuant to 22 NYCRR §130-1.1-a, the undersigned, an attorney duly admitted to
practice in the courts of the State of New York, certifies that, upon information and belief,
and reasonable inquiry, the contentions coñtaiñêd in the emnexed document are not frivolous
as defined in subsection (c) of the aforesaid section.
En C. Luke Jr.
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EXHIBIT B
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NYSCEF DOC. NO. 15 Case
Case1:21-cv-06673
7:21-cv-02130 Document
Document1-2
1 Filed
Filed 03/11/21
08/06/21 Page
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RECEIVED
Lawrence Peikes (LP-2478)
lpeikes@wiggin.com
WIGGIN AND DANA LLP
437 Madison Avenue
35th Floor
New York, NY 10022
(212) 551-2600
Attorneys for Defendant
Walmart Inc. f/k/a Wal-Mart Stores, Inc.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TIA JUSTINO, :
:
Plaintiff : CASE NO. _______________
:
v. :
:
WAL-MART STORES, INC., :
: NOTICE OF REMOVAL
Defendant. :
:
TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Preview
FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 08/06/2021 EXHIBIT 1 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED 1 of 7 NYSCEF: 08/06/2021 Lawrence Peikes (LP-2478) lpeikes@wiggin.com WIGGIN AND DANA LLP 437 Madison Avenue 35th Floor New York, NY 10022 (212) 551-2600 Attorneys for Defendant Walmart Inc. f/k/a Wal-Mart Stores, Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TIA JUSTINO, : : Plaintiff : CASE NO. 1:21-cv-6673 : v. : : WAL-MART STORES, INC., : : NOTICE OF REMOVAL Defendant. : : TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK Defendant Walmart, Inc. f/k/a Wal-Mart Stores, Inc. (“defendant” or “Walmart”) hereby notices the removal of this action to the United States District Court for the Southern District of New York pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, based on diversity jurisdiction. Removal is appropriate based on the following: 1. On or about January 13, 2021, plaintiff Tia Justino (“plaintiff”) filed a civil action against defendant in the Supreme Court of the State of New York, County of Orange, designated as Index No. EF000285-2021. A copy of the Summons and Complaint is attached hereto as Exhibit A, pursuant to 28 U.S.C. § 1446(a). FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED 2 of 7 NYSCEF: 08/06/2021 2. In her Complaint, plaintiff purports to allege claims under the New York State Human Rights Law (“HRL”), N.Y. Exec. Law §§ 296, et seq., for sexual harassment (First Cause of Action) and retaliation (Second Cause of Action). 3. Defendant first received notice of the civil action on or about February 12, 2021, when process was served. 4. Pursuant to 28 U.S.C. § 1446(b), defendant timely filed a notice of removal, attached hereto as Exhibit B (“first notice of removal”), on March 11, 2021, within thirty (30) days after defendant was first notified of the lawsuit. 5. In its first notice of removal, defendant asserted that this action was properly removable because the United States District Court had original diversity-based jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). More specifically, defendant maintained that the United States District Court had diversity jurisdiction at the time of the Complaint’s initial filing because complete diversity existed between the parties and, while the Complaint did not specify the precise amount of damages claimed, the nature of plaintiff’s claims indicated she would be entitled to recover in excess of $75,000 in damages were she to prevail on the merits of her claims. Exhibit B, ¶¶ 10-11. 6. The Court (Halpern, J.) sua sponte remanded this action to the Supreme Court of the State of New York, County of Orange for lack of subject matter jurisdiction. The remand Order concluded that “Defendant failed to satisfy its burden of establishing that the amount in controversy exceed[s] $75,000.” Remand Order, attached hereto as Exhibit C, at 4. However, the Order further noted that “a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become 2 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED 3 of 7 NYSCEF: 08/06/2021 removable.” Id., at 3 (quoting 28 U.S.C. § 1446(b)(3)). The Order went on to elaborate that, “[i]f the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an ‘other paper’ under subsection (b)(3).” Id. (quoting 28 U.S.C. § 1446(c)(3)(A)) (emphasis added). Finally, the Court noted that “the 30-day removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought” and, in this matter, “no paper ha[d] been served that would start the 30-day removal clock.” Id. at 4 (quoting Johnson v. Home Depot U.S.A., Inc., No. 19-CV_3476, 2019 WL 5287969, at *2 (E.D.N.Y. Oct. 18, 2019)) (emphasis added). 7. On March 22, 2021, defendant served its First Set of Interrogatories in the state court proceeding requesting, inter alia, that plaintiff “[s]tate each type or element of damages and relief (legal or equitable) for which plaintiff intends to seek recovery in this case. Specifically: (a) describe the type or element of damages and relief; (b) as to each type or element of damages and relief, state eth amount of damages plaintiff is claiming and describe in detail plaintiff’s calculations in determining such amount; (c) as to each type or element of damages and relief, identify all documents which refer or relate to the damages claimed, the basis of plaintiff’s claim of such damages, or support the amount claimed, and plaintiff’s method of calculation; and (d) identify any person plaintiff believes to have knowledge or information concerning each type or element for which plaintiff intends to seek relief in this case, and state separately with respect to each such person any and all facts, knowledge, and information plaintiff believes such person possesses.” Defendant’s First Set of Interrogatories, No. 12, attached hereto as Exhibit D. 3 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED 4 of 7 NYSCEF: 08/06/2021 8. By way of her Amended Responses to Defendant’s First Set of Interrogatories, dated July 9, 2021, plaintiff identified the following categories and corresponding monetary amounts of damages: “a. The stress at the workplace took a toll on me mentally, and physically. I was admitted to the hospital and had to take time off as I had issues with my bilinary glands, pancreas, liver, and experienced heightened anxiety and depression. I have several hospital bills due to the health conditions caused by my workplace. b. Seeking Damages worth $150,000 for emotional distress as allowed under the applicable statute. c. Hospital bills, I am currently unsure of the total....” Plaintiff’s Amended Responses to Defendant’s First Set of Interrogatories, No. 12, attached hereto as Exhibit E. 9. Thus, according to plaintiff’s interrogatory responses, she is seeking monetary damages for emotional distress totaling at least $150,000. Additionally, should she prevail, plaintiff would be eligible to recover additional monetary damages for lost wages, as well as interest, costs, and reasonable attorneys’ fees. As such, based on plaintiff’s discovery responses it is now clear that the amount in controversy exceeds $75,000. 10. This action has become properly removable because the United States District Court has original diversity-based jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) in that the matter in controversy exceeds the sum of $75,000.00, exclusive of interests or costs, and is between citizens of different states. 11. Plaintiff alleges that she resides in Newburgh, New York. (Exhibit A, ¶ 2). Upon information and belief, plaintiff is domiciled in New York and is therefore a citizen of New York for diversity purposes. 15 Moore’s Federal Practice, § 102.30, at p. 102-127 (Matthew Bender 3d Ed. 2015). 4 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED 5 of 7 NYSCEF: 08/06/2021 12. Defendant Walmart Inc., formerly known as Wal-Mart Stores, Inc., is a Delaware corporation with a principal place of business in Arkansas and is therefore a citizen of Delaware and Arkansas for diversity purposes. 28 U.S.C. § 1332(c)(1). See also Washington Nat’l Ins. Co. v. OBEX Grp. LLC, 958 F.3d 126, 133 (2d Cir. 2020) (“For purposes of the statute, a corporation is a citizen of the state in which it has its principal place of business and every state in which it has been incorporated.”). 13. Consequently, there exists complete diversity between plaintiff, a citizen of New York, and defendant, a citizen of Delaware and Arkansas. 14. Furthermore, Plaintiff’s Amended Responses to Defendant’s First Set of Interrogatories expressly quantify her claimed damages as at least $150,000, well in excess of the $75,000 threshold for removal based on diversity jurisdiction. See 28 U.S.C. §§ 1332(a)(1), 1446(c)(2)(A)(ii). 15. The Supreme Court of the State of New York, County of Orange, is located within the Southern District of New York. Therefore, venue is proper in this Court because it is the “district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). 16. This notice is timely filed within thirty (30) days of July 9, 2021, the date of defendant’s receipt of “a copy of an amended pleading, motion, order or other paper from which it [could] first be ascertained that the case is one which is or has become removable,” 28 U.S.C. § 1446(b)(3), namely, Plaintiff’s Amended Responses to Plaintiff’s First Set of Interrogatories. 17. Pursuant to 28 U.S.C. § 1446(d), copies of all process, pleadings, and orders served upon defendant are attached hereto. 5 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED 6 of 7 NYSCEF: 08/06/2021 18. Pursuant to 28 U.S.C. § 1446(d), copies of this Notice of Removal have been served on all adverse parties and upon the Clerk of the State Court. 19. By removing this matter, defendant does not waive or intend to waive any available defenses. WHEREFORE, defendant respectfully requests that this Honorable Court take jurisdiction of this action and issue all necessary orders and process to remove said action from the Supreme Court of the State of New York, County of Orange, to the United States District Court for the Southern District of New York. Dated: August 6, 2021 New York, New York Respectfully submitted, DEFENDANT, WALMART INC. By: /s/ Lawrence Peikes Lawrence Peikes (LP-2478) lpeikes@wiggin.com WIGGIN AND DANA LLP 437 Madison Avenue 35th Floor New York, NY 10022 (212) 551-2600 6 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1 Filed 08/06/21 PageRECEIVED 7 of 7 NYSCEF: 08/06/2021 CERTIFICATE OF SERVICE I hereby certify that on this 6th day of August, 2021, the foregoing Notice of Removal was filed electronically. Notice of this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. /s/ Lawrence Peikes Lawrence Peikes (LP-2478) 7 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page 1 of 8 NYSCEF: 08/06/2021 RECEIVED EXHIBIT A FILED: ORANGE COUNTY CLERK 08/06/2021 01/13/2021 05:42 11:33 PM AM INDEX NO. EF000285-2021 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page NYSCEF DOC. NO. 1 2 of 8 NYSCEF: 08/06/2021 RECEIVED 01/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE ________ x Index No. TIA JUSTINO, Plaintiff, Plaintiff designates ORANGE COUNTY As the place of trial v. SUMMONS WAL-MART STORES, INC., The basis of venue is Defendant's Business Located at: 288 Larkin Drive Monroe, NY 10950 Defendant. x To the above-named Defendant: YOU ARE HEREBY SUMMONED to answer the complaint in this action and to serve a of your answer, or, if the complaint is not served with this summons, to serve a notice of copy appearance, on the plaintiffs attorney within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the inconvenience relief demanded in the complaint. Dated: Melville, New York January 13, 2021 SLATER SLATER SCHULMAN LLP 445 Broadhollow Road, Suite 419 Melville, New York 11747 Attorneys for Plaintiff Jol C. Luke, Jr., Esq. Defendant's Address: Wal-Mart Stores, Inc. 8th 702 SW Street Bentonville, AR 72716 Filed in Orange County 01/13/2021 11:33:02 AM $0.00 1 of Bk: 5143 7 Pg: 1150 Index: # EF000285-2021 Clerk: VS FILED: ORANGE COUNTY CLERK 08/06/2021 01/13/2021 05:42 11:33 PM AM INDEX NO. EF000285-2021 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page NYSCEF DOC. NO. 1 3 of 8 NYSCEF: 08/06/2021 RECEIVED 01/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE x Index No.: TIA JUSTINO, Plaintiff, COMPLAINT -against- JURY TRIAL DEMANDED WAL-MART STORES, INC., Defendant. ----------------------------------------------------------------x Plaintiff, Tia Justino, (hereinafter "Plaintiff") by her counsel, SLATER SLATER SCHULMAN LLP hereby sübiñits this Complaint and complains of the Defendant, upon information and belief, as follows: NATURE OF CASE 1. Plaintiff complains pursuant to the New York State Human Rights Law, New York State Executive Law § 296, et seq. ("NYSHRL"), and seeks damages to redress the injuries Plaintiff suffered as a result of being exposed to sexual discrimination, sexual harassment, retaliation, and constructive dischargc/wrongful teñniñation. PARTIES 2. Plaintiff is a single heterosexual female who resides in Newburgh, New York. 3. Defendant Wal-Mart Stores, Inc. (Hereinafter "Defendant") was and is still is a foreign corporation duly organized and existing under and by virtue of the laws of the State ofNew York. 4. Upon information and belief, Defendant solicits business within the State of New York. 5. Upon information and belief, Defendant derives substantial revenues from goods used or consumed or services rendered in the State of New York. 2 of 7 FILED: ORANGE COUNTY CLERK 08/06/2021 01/13/2021 05:42 11:33 PM AM INDEX NO. EF000285-2021 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page NYSCEF DOC. NO. 1 4 of 8 NYSCEF: 08/06/2021 RECEIVED 01/13/2021 "employer" 6. Defendant is an within the meaning of the New York Human Rights Law and at all relevant times, employed Plaintiff. FACTS 7. Plaintiff commêñced her employment with Defendant on or around June 18, 2018 in Monroe, New York within Orange County. 8. Plaintiff worked for Defendant as a CAP 2 Supervisor. 9. Plaintiff's duties included unloading trucks and supporting her manager. 10. After six (6) months Defendant promoted Plaintiff to Deli Manager. 11. Plaintiff's duties iñclüded taking care of floor freight and managing the freezer. 12. The sexual harassment started when Plaintiff's co-worker David commêñced his employment with Defendant. 13. First, David stated to Plaintiff that his wife allowed him to have sexual relationships with other women. 14. David consistently requested that Plaintiff send him naked photos. 15. David also consistently requested that Plaintiff bend over. 16. David told Plaintiff not to walk a certain way because when she did, he would want "F*** Sh** her." to the out of 17. On January 7, 2020, David sent Plaintiff a picture of his penis. 18. On January 13, 2020, Plaintiff complained to her Manager Renee. 19. The harassment did not end at this time. 20. On or around February 20, 2020, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") against Defendant. 21. Defendant's managers contimled to schedule Plaintiff and David with overlapping shifts. 2 3 of 7 FILED: ORANGE COUNTY CLERK 08/06/2021 01/13/2021 05:42 11:33 PM AM INDEX NO. EF000285-2021 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page NYSCEF DOC. NO. 1 5 of 8 NYSCEF: 08/06/2021 RECEIVED 01/13/2021 22. David contiüüed leering and staring at Plaintiff in a sexually aggressive manner. 23. As a result, Plaintiff tried to limit her interactions with David by taking her lunch break at the beginning of David's shifts. 24. David also used to come in on his days off and leer and stare at Plaintiff in a sexually aggressive manner. 25. In addition to failing to remedy the situation, Defendant's mañagers retaliated against Plaintiff by not providing her with the assistance she received prior to the complaint. 26. Prior to the complaint, Defendant's managers scheduled associates to assist Plaintiff during her shifts. 27. After Plaintiff's complaint, Defendant's managers stopped scheduling associates to assist Plaintiff and told her that she should be doing everything by herself. 28. The decrease in her expected help further deteriorated Plaintiff's work enviroñüient by effecting her ability to do her job. 29. Defendant's managers also retaliated against Plaintiff by investigating her for baseless accusations made a gainst her after her complaint of sexual harassment. 30. Prior to her complaint of sexual harassment, Plaintiff's employment record was devoid of any written discipline. 31. The unchecked continuing sexual harassment and retaliation forced Plaintiff to withdraw from her employment. 32. Defendant constructively discharged Plaintiff on or about October 26, 2020. Defendant' 33. As a result of s contiüüed harassaient of Plaintiff, she suffered numerous injuries including economic and physical/emotional damages. 3 4 of 7 FILED: ORANGE COUNTY CLERK 08/06/2021 01/13/2021 05:42 11:33 PM AM INDEX NO. EF000285-2021 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page NYSCEF DOC. NO. 1 6 of 8 NYSCEF: 08/06/2021 RECEIVED 01/13/2021 34. Due to the harassment of Defendant, Plaintiff suffers from high stress and anxiety. 35. Plaintiff suffered emotional and other non- pain, suffering, inconvenience, pecuniary losses. 36. As Defendant's conduct has been malicious, willful, outrageous, and condüeted with full knowledge of the law, Plaintiff demands punitive damages as against Defendant. 37. The above are just some of the examples of unlawful conduct to which Defendant subjected Plaintiff on an ongoing continuous basis. 38. Defendant intentionally discriminated against Plaintiff based on her gender/sex and because of her lawful complaints of discriniination. 39. Defendant has a pattern and practice of discrimination and retaliation. AS A FIRST CAUSE OF ACTION FOR DISCRIMINATION UNDER NEW YORK STATE LAW 40. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of this complaint. 41. Executive Law § 296 provides that "1. It shall be an unlawful discriminatory practice: "(a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sex, or disability, or marital status of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to disciiniinate against such individual employment." in compensation or in terms, conditions or privileges of 42. Defendant engaged in an unlawful discriminatory practice by discriminating against the Plaintiff through gender/sex discrimination, hostile work envirergilent based on sex, sexual harassment, and constructive discharge/wrongful discharge. 4 5 of 7 FILED: ORANGE COUNTY CLERK 08/06/2021 01/13/2021 05:42 11:33 PM AM INDEX NO. EF000285-2021 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page NYSCEF DOC. NO. 1 7 of 8 NYSCEF: 08/06/2021 RECEIVED 01/13/2021 43. Plaintiff hereby makes a claim against Defendant under all of the applicable paragraphs of Executive Law Section 296. AS A SECOND CAUSE OF ACTION FOR DISCRIMINATION UNDER NEW YORK STATE LAW 44. Plaintiff repeats and realleges each and every allegation made in the above paragraphs of this complaint. 45. New York State Executive Law §296(7) provides that it shall be an unlawful discriminatory practice: "For any person engaged in any activity to which this section applies to retaliate or discriminate against any person because [s]he has opposed any practices forbidden under article." this 46. Defendant engaged in an unlawful discriniinatory practice by wrongfully retaliating against Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant, in an am0üñt to be determined attorneys' at the time of trial plus interest, punitive damages, fees, costs, and disbursements of action; and for such other relief as the Court deems just and proper. Dated: Melville, New York January 13, 2021 Respectfully submitted, SLATER SLATER SCHULMAN LLP John C. Luke, Jr., Esq. Attorneys for Plaintiff 445 Broad Hollow Road, Suite 419 Melville, New York 11747 (631) 420-9300 6 of 7 FILED: ORANGE COUNTY CLERK 08/06/2021 01/13/2021 05:42 11:33 PM AM INDEX NO. EF000285-2021 15 Case 1:21-cv-06673 Document 1-1 Filed 08/06/21 Page NYSCEF DOC. NO. 1 8 of 8 NYSCEF: 08/06/2021 RECEIVED 01/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE x Index No.: TIA JUSTINO, Plaintiff - against - WAL-MART STORES, INC., Defendant. ........................................................ x SUMMONS/COMPLAINT Slater Slater Schulman LLP Attorneys For Plaintiff 445 Broad Hollow Road, Suite 419 Melville, New York 11747 (631) 420-9300 CERTIFICATION Pursuant to 22 NYCRR §130-1.1-a, the undersigned, an attorney duly admitted to practice in the courts of the State of New York, certifies that, upon information and belief, and reasonable inquiry, the contentions coñtaiñêd in the emnexed document are not frivolous as defined in subsection (c) of the aforesaid section. En C. Luke Jr. 7 of 7 FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case 1:21-cv-06673 Document 1-2 Filed 08/06/21 Page 1 of 26 NYSCEF: 08/06/2021 RECEIVED EXHIBIT B FILED: ORANGE COUNTY CLERK 08/06/2021 05:42 PM INDEX NO. EF000285-2021 NYSCEF DOC. NO. 15 Case Case1:21-cv-06673 7:21-cv-02130 Document Document1-2 1 Filed Filed 03/11/21 08/06/21 Page Page 12 of of 626 NYSCEF: 08/06/2021 RECEIVED Lawrence Peikes (LP-2478) lpeikes@wiggin.com WIGGIN AND DANA LLP 437 Madison Avenue 35th Floor New York, NY 10022 (212) 551-2600 Attorneys for Defendant Walmart Inc. f/k/a Wal-Mart Stores, Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK TIA JUSTINO, : : Plaintiff : CASE NO. _______________ : v. : : WAL-MART STORES, INC., : : NOTICE OF REMOVAL Defendant. : : TO: THE HONORABLE JUDGES OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK